Health Bill - Standing Committee E

[Mr. Eric Illsley in the Chair]

Health Bill

Eric Illsley: For the benefit of members of the Committee, I must say that we are late starting this morning because of a security alert in part of the Palace. I have one or two announcements to make. Our sitting hours today will be from now until no later than 11.25 am and this afternoon from 2 pm until an adjournment is agreed.
The printers have wrongly retained the starring next to four amendments on the paper. None of the amendments before us is ineligible for selection on the basis of starring. We will now resume our proceedings at clause 13.

Clause 13 - Code of practice relating to health care associated infections

Steve Webb: I beg to move amendment No. 100, in clause 13, page 8, line 43, leave out from second ‘infection’ to end of line 4 on page 9 and insert
‘which arises as a result of healthcare interventions, either in patients undergoing these interventions or in health care workers involved in these interventions.’.
Good morning, Mr. Illsley. I hope that we can now make fast progress because there is a lot to cover in the remaining six sittings, and we may not reach some issues if we do not do so. I shall try to be as brief as possible.
Amendment No. 100 relates to worries expressed by the Royal College of Nursing about the definition of heath care-acquired infections. I an interested in the basis for the definition under the Bill because it seems slightly at variance with that used by the Health Protection Agency, which states:
 “Healthcare-associated infections are those that arise as a result of healthcare interventions, either in patients undergoing these interventions or in healthcare workers involved in these interventions. A wide variety of organisms can be transmitted in healthcare settings, causing in turn a wide range of different diseases.”

David Kidney: Did the hon. Gentleman say that we had six sittings left? I keep looking at the motion and thinking that there are four, including this one.

Steve Webb: It is wishful thinking. The hon. Gentleman is right. There are four sittings left, so what I said was only a 50 per cent. exaggeration.
Anyway, back to health care-acquired infections. There are two definitions, one used by the HPA and one used in the Bill. Will the Minister explain why the  definition is as it is in the Bill? The RCN says that we need first to understand what infections would be transmitted or spread anyway and what infections relate to health care actions. It is fair to say that members of the Committee do not want to exaggerate. We do not want to sensationalise. We do not want people saying, as they say to me sometimes, “I don’t want to go into hospital because I’ll catch something.” We do not want people to be so afraid of, or so concerned about, the national health service that they think it is bug-infested and do not want to go near it. There must be a sense of perspective and proportion.
The amendment would make the distinction between, for example, an infection brought into hospital by a patient, which becomes observed only in hospital, and an infection that is associated with a health care action. That is a relatively simple distinction, but has the Department assessed the extent to which infections that are identified on NHS premises are the cause of health care actions and the extent to which they are methicillin-resistant Staphylococcus aureus or something else that has been brought in and identified during a person’s course of treatment, but is not a health care-associated infection because the person already had it? I am not talking about health care action such as a dirty ward but about an infection that was brought into the hospital. The statistics for such infections are aggregate. No distinction is made in respect of the original source.

Andrew Murrison: Has the hon. Gentleman observed the suggestion that people should be screened pre and post-admission? Does he agree that that might solve the conundrum? I suspect that the Minister will say that she does not have the information that the hon. Gentleman seeks. My suggestion would supply the information.

Steve Webb: Superficially, pre-admission screening is attractive. We have discussed that briefly in Committee, at which time the Minister said that the cost-effectiveness of the screening processes had not been demonstrated. I am open to the suggestion. The private sector can take such action more often because it is dealing with planned admissions and elective surgery, whereas the NHS is, to some extent, the victim of having to take anyone who turns up at its door. If such action can be proved to be clinically effective and cost-effective, I shall be open to the suggestion. It would help the point that I am making.
Why is the definition in the Bill different from that used by health bodies? Can we distinguish between infections acquired as a result of health care intervention and those that are identified in a heath care setting? Can the Government give some assessment of the balance between those two sources of risk?

Andrew Murrison: It is a great pleasure to serve under your chairmanship once again, Mr. Illsley.
The hon. Member for Northavon (Steve Webb) said that he hoped we could rattle through the remaining parts of the Bill. I also hope that we shall make some  progress because, as he said, at the moment we are in danger of not reaching some of its important bits. Not to reach them would be a great pity, would it not?
If I may leap to the Government’s defence, amendment No. 100 seems somewhat redundant. As I read it—shortly, the Minister will be able to clarify her intentions—the Bill covers the eventuality to which the hon. Gentleman referred. Occupational health is important and the issue of the transfer of organisms from patients to practitioners, health care workers and people in general in hospital settings is important for two reasons: first, because those people may become ill and secondly because they may unwittingly transfer bugs to other people—patients or otherwise.
I understand the hon. Gentleman’s intentions. They are good ones, although, as I said, my reading of the Bill is that it covers the eventualities to which he referred; shortly, the Minister will clarify. Furthermore, the guidance notes are very good and comprehensive, although perhaps I shall regret saying that. They are helpful and assist us in this matter.
The hon. Gentleman did not mention some of the more catastrophic infections that face our health service. Last week, I raised the issue of viral hemorrhagic fever. It is important fully to appreciate the risks that people working in the health service face as a result of their occupation; perhaps we have neglected that. As we face an increasing threat from more exotic, but nevertheless devastating, infections, it seems appropriate that we should bend our minds towards how we might protect those who work in the health services in processes that are very difficult to control. In the context of occupational health, such infections create unusual circumstances for which there are no procedures. Each one of them is unique, and that means that risk is maximised.
The hon. Gentleman has, perhaps unwittingly, done us a service in prompting us to think not just of patients in the context of hospital-acquired infections but of those who work in the health service. For that we should be grateful. I hope that in a minute the Minister will say that she appreciates the hon. Gentleman’s intentions, but that his concerns are covered in the Bill—and, if not there, in the guidance notes.

Jane Kennedy: I am tempted to say that I could not have put it better myself. I shall speak very briefly. It is worth saying that the definition is simple and straightforward. Health care-associated infections are those acquired in connection with health care; that definition is much broader than that of a hospital-acquired infection.
However, I acknowledge the concerns raised by the RCN and I understand the reason for the nature of the amendment. We acknowledge that the burden of health care-associated infections has been mainly on hospitals, where more serious infections are seen and where it is estimated that at any one time 9 per cent. of all in-patients have acquired an infection while in hospital. We are also interested in screening; I do not want to dismiss the concept out of hand. We are testing different methods of screening to ascertain whether  there are ways to screen for MRSA, for example, in a cost-effective way that will produce results and reduce the risk of passing on the infection in hospital.
The amendment tabled by the hon. Member for Northavon would restrict the definition to the detriment of patient safety. For example, it would exclude infections caused by environmental factors as opposed to actual clinical procedure. Examples of environmental factors are inadequate ventilation or decontamination failures in the hospital. It would restrict the scope of the code to infections that are caused by health care interventions. As the objective of the code is to require an NHS body to carry out a risk analysis and develop systems to protect patients, staff and visitors by minimising the risk of health care-associated infections, the amendment would not benefit the Bill. I hope that the hon. Member for Northavon accepts that explanation.

Steve Webb: I am grateful to the Minister for that response, but it raises a question. If the Health Protection Agency uses a narrower definition, similar to the one in the amendment, but the Bill proposes a broader definition, should she go back to the agency and suggest that its activities be broadened in scope because they are unnecessarily narrow? That is an interesting question.
I notice that the Minister did not offer an answer to my question about the Government evidence on the distinction between infections acquired in the health care setting and those brought in. That is an important distinction to make, because if we want effective measures to be in place to tackle infections, we need to know where they are coming from. It is interesting that the Government appear not to know, or certainly the Minister did not tell us, what the balance is on those two fronts. However, we have had a useful discussion to kick off the debate and I shall not press the point. As I said, I am grateful to the Minister for her response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.

Andrew Murrison: We have had quite an extensive debate on the clause and it would perhaps be wrong of me to repeat what has been said. Thursday’s debate was certainly an enlivening experience for me, and we covered a great deal of ground. However, I would like to put a few points to the Minister before we take a decision on clause 13.
The crux of the matter is the code, which is a bit of a mixed bag. It is a rather non-specific document; it has a lot of generalities, many of which we covered on Thursday. The question is to what extent the code adds anything to our fight against the range of infections that we are considering. We are left with the view that, as drafted, it does not do so. We hope that when the definitive document is produced in the fullness of time, it will be a little more helpful to those on the ground who are expected to carry forward the fight against  hospital-acquired infections. The early draft, as I said fairly unequivocally on Thursday, does not give us a great deal of hope that that will be the case.
In debating the clause, we have proposed a number of amendments that would materially have assisted thed¤Government in producing legislation to help our fightd¤against hospital-acquired infections. The Government, having politely listened to our suggestions, declined to recommend them to the Committee, as is their prerogative, but we may well have to return to at least some of them later. I hope that when we eventually get the legislation and, subsequently, the code, it will lay out precisely what people should be doing to tackle hospital-acquired infections and that they will have something that will be useful to them and give them a sense of direction.
When I talk to health care professionals about the issue, they tend to say to me, “The Government appear to be devolving the responsibilities to us, but there seems to be little in the way of concrete guidance.” We have suggested that there should be a manual of hospital-acquired infection control. If the Minister does not want to lay all this down in the code of practice that emanates from the legislation, she should at least give some consideration to a definitive text, so that best practice throughout the health service can be pulled together. Such a document would of course have to be updated regularly, because this is a changing science, but it would be useful for people to refer to. Of course it would not have any statutory force; it would have force only as a text. As things stand at the moment, if there is a case against an individual or a hospital, standard works can be cited in defence or otherwise. The document would merely have that kind of strength, but it seems appropriate to produce such a volume to give guidance to people who are carrying on the fight against hospital-acquired infections.
We are concerned about the recording of data. The Government are, rightly, recording hospital-acquired infection data—MRSA data, specifically—by hospital, by institution. That is very good, but for data to be useful, they must be broken down to an appropriate level. Given the nature of large hospitals, data apportioned according to hospital may not prove that helpful. We all know that our constituents will give us mixed reports on hospitals. They may tell us that the cardiology or dermatology department is spotless, but that paediatrics is dreadful. We know from evidence that has been collected that cleanliness in hospitals can be a mixed bag. Therefore a hospital cannot be considered as a whole.
It would be expedient to break down data according to the department, ward, or unit in order to control hospital-acquired infections. Indeed, for reasons that I discussed on Thursday, we should break them down even further under certain circumstances, especially in areas in which we know there to be a risk of health care-associated infection. For example, if we attribute certain infections to an individual practitioner, one can identify and deal with specific problems. Data that  are collected from a ward or department raises the question of what on earth we should do about those that are above or below average. We must decide why exactly that ward or department is an outlier. That can be done by ensuring that it is clean. If it is dirtier than the norm, one can deal with that.
We must be cleverer than that, however. I suspect that the cause of many infections is the practices of an individual. Indeed, the prevention of many infections will be as a result of an individual’s good practice. The problem can be dealt with only by collecting individual-level data. We can learn from cases in which a particular individual is performing better. By doing that, we can improve best practice.
Referring again to our proposed manual of hospital-acquired infection control, to which the Minister might wish to give some thought at some point, it would be a manual of best practice.

Steve Webb: I am following the hon. Gentleman’s argument with interest, but I am a bit puzzled at the notion of individual-level reporting. Many health care professionals are involved in the care of any given patient. If one nurse has practised bad infection control, should everyone who has come into contact with or served the patient a meal be listed, or even blacklisted?

Andrew Murrison: No, I am not saying that at all. That is an entirely predictable question from the Liberal Democrats. On Thursday, I gave the hon. Gentleman an example from my practice related to urinary tract infections. In such high-risk procedures, it is appropriate to determine why one individual produces better results than another. The hon. Gentleman furrows his brow, but he has been around for the past year or so when Ministers have presented those data in league tables. He must know what I mean.
A critical outcome is where someone contracts a urinary tract infection. That can be devastating. It is important that we know which individuals are performing well and which are performing less well. Collected data may show a high level of infection in a department in which many high-risk procedures are carried out. We are then left asking ourselves why there is that high level of infection. It prompts the question, “Who is responsible for this and what are we going to do about it?”
There is no point in collecting data for the sake of it unless those data will be put to some use. In order to do that, one must know who is involved with those data-collecting procedures. The hon. Gentleman may have a better suggestion, but I cannot think of a better way than recording data at an individual level to deal with problems or, as I have taken some pains to explain, to identify particularly good practice. That information is needed if we are to drive up standards.
I suggest to the hon. Gentleman that the worst possible thing would be to gather data that is largely useless. If data is to be gathered, it should be the right data, containing sufficient detail. That is the crux of what I am saying to the hon. Gentleman. It would be  highly redundant to collect such material in respect of every clinical department; manifestly, that would be a gross waste of resources. However, in areas which are known to be high-risk, where in the general run of things there will probably be a fair number of hospital-acquired infections, it would be helpful to be more specific about the sort of data that is gathered.

Steve Webb: Perhaps in a spirit of consensus the hon. Gentleman and I can find some common ground. I agree with him that statistical information at trust level is insufficiently disaggregated, but I struggle with the notion of ascribing things to an individual, whether the hon. Gentleman means a consultant or another individual. For example, if bad nursing practice is the cause of an infection, there is a danger that an individual consultant may, wholly unfairly, get “bad figured” and be at the bottom of a league table. Surely, we should identify where within a trust there is a problem and have a look at what is going on in the entire system, rather than just trying to tabulate and ascribe problems to named individuals. Departments and wards should be considered as a whole; it is the individual concept that I have trouble with.

Andrew Murrison: I understand precisely where the hon. Gentleman is coming from. To judge from his earlier amendment, he has been discussing the matter with the organisations that represent individuals. He does not want individuals to be blamed or a blame culture to emerge, and I agree with that. However, it is individuals who provide health care, within teams, of course, but at the end of the day, individuals manage patients and, generally speaking, they do it extremely well.
We are discussing hospital-acquired and health care-associated infections and health care is provided by individuals. If there are problems or if there is good practice it is down to individuals, not to amorphous teams. I thought that I had made it clear that it would be redundant to undertake the kind of exercise suggested in, for example, a dermatology out-patients department; it would not be a very good use of resources. But in urology, the potential for health care-associated infections is quite high and it is individuals who do catheterisations, as I said at our last sitting. If there is a problem, it is down to the individual carrying it out.

Steve Webb: The right individual.

Andrew Murrison: Of course, but I am not exactly sure what the hon. Gentleman thinks I am suggesting. I am certainly not proposing a witch hunt against persons; I am trying to impress on him, but he does not seem to grasp, that infections are because individuals do not comply with best practice. That is precisely the problem that I am trying to get round.
The hon. Gentleman, in a way that is typical of his party, is keen on showering us with warm words; I suspect that he roundly approves the code of practice, which is full of words but has very few teeth. My constituents and those of the hon. Gentleman—we share a major hospital—are concerned about what is  being done to address the infection that they or their nearest and dearest may contract when they are admitted to hospital. We need to identify where there are problems and take action to sort them out. That is not the witch hunt that the hon. Member for Northavon fears; it is identifying those who are not complying with best practice and re-briefing and retraining them.
I certainly accept that whole systems often need to be looked at, and that is why we must gather departmental data. However, I underscore the fact that, in my experience, it is a departmental, rather than a whole hospital, issue. I am sure that the hon. Gentleman will find common ground with me from his experience of the Royal United hospital, Bath. At the end of the day, it is individuals who deal with patients and individuals who implement best practice. Some of them may do less well, and when that is the case, there is obviously potential for health care-associated infection. That is my point. He may, on reflection, agree with me; if not, I suggest that he contacts the chief executive of the RUH, asks for an in-detail tour of the hospital, and views some of the high-risk procedures. He might then more fully understand what I am trying to get at. I think that we have exhausted this line of debate, so unless the hon. Gentleman wants to intervene on me to explore my thoughts further, I shall move on.
My hon. Friend the Member for Mid-Bedfordshire (Mrs. Dorries) is delayed, but I agree with the purpose behind her amendments. She described the difficulty with laundry in certain areas. I elaborated on that from my personal experience of 20 years of practice. I was fairly frank in my admission that during my time as a junior hospital doctor, hygiene standards were not what one might expect. I hope that things have greatly improved—indeed, from my observation, I think that they probably have. Certainly, the subject of hygiene in general is better covered than it was 20 years ago. I am sure that those now training in medicine, nursing and other health care professions are briefed quite well on their responsibilities to maintain hygiene and cleanliness.
However, my hon. Friend’s reference to her nursing colleague, who had spilled the previous evening’s dinner down her dress, was graphic. Many of our constituents are concerned about the cleanliness and presentation of health care staff, so my hon. Friend’s remarks were well made. On hospital laundry, it is important that the Minister understands that if uniforms are to be adequately laundered, we need some sort of central provision. It is simply inadequate to expect individuals to take care of that; they are busy people with demanding careers who lead frantic lives. With the best will in the world, and although we wish it otherwise, laundering often tends to get neglected.
If we live in the real world, as I hope that we do, it is important to investigate how we can help individuals to ensure that their uniforms are up to an acceptable standard of cleanliness. The Minister might say, “Ah, there’s another Conservative spending commitment,” but the fact is that health care-acquired infection—

Eric Illsley: Order. I apologise for interrupting the hon. Gentleman, but both hon. Members who have spoken this morning made reference to the fact that we are in the ninth of 12 sittings, and we need to make progress. We Chairmen have been generous in allowing a clause stand part debate on this clause, which has already been extensively debated in discussing amendments to it. We are less than a quarter of the way through the Bill, so I strongly recommend that Members make their speeches a little more concise.

Andrew Murrison: I am extremely grateful for that advice, Mr. Illsley. Your colleague generously allowed a discursive debate on Thursday, and I promise not to test your patience too much. However, we are addressing important issues; this is an important part of the Bill. Health care-associated infections exercise many of our constituents, and we need to explore the subject comprehensively—thus the extent of my remarks. However, I am coming towards the end of them.
I hope that, even at this late stage, the Minister will consider giving some beef to the clause. If she is not minded so to do, which seems to be a real possibility, I hope that when she draws up her definitive code, it will be more helpful than the document that she has produced in draft for us. That document is full of warm words, and I accept that it has good bits, but it needs to be specific if it is to do anything to tackle health care-associated infections.

David Kidney: The hon. Member for Westbury (Dr.d¤Murrison) was right to question the nature and the point of surveillance. Does my right hon. Friend the Minister intend, in due course, to use the clause to impose a more comprehensive system of surveillance in the national health service for health care-associated infections, and if so, is she satisfied that the clause is sufficiently widely drawn to enable her to do that?
I have been assisted in thinking this issue through by postnote 247 of July 2005 from the Parliamentary Office of Science and Technology, headed “Infection control in healthcare settings”. The current mandatory surveillance started in 2001 when the Department made mandatory the surveillance of methicillin-resistant Staphylococcus aureus blood infections. In 2003, we also made mandatory the surveillance of glycopeptide-resistant enterococci, and in 2004 we made mandatory the surveillance of clostridium difficile. I hope that I have pronounced those conditions correctly.
Many hospitals also continue to use the nosocomial infection national surveillance scheme—NINSS—which was established by the last Conservative Government in 1996. NINSS is a voluntary scheme, using standard surveillance methods in hospitals in England to provide information on all health care-associated infections. However, there is still no national mandatory surveillance scheme for all infections. The different surveillance schemes that exist do not present comparable data. Also, a lack of information technology in some trusts means that surveillance sometimes cannot be carried out.  Therefore, the overall extent of health care-associated infections remains difficult to gauge. The Public Accounts Committee has looked into the matter twice, and has recommended that there should be a national surveillance scheme, perhaps building on NINSS, and that it should be mandatory. In response to that, the Department has commissioned a national survey of all infections that is due to report in 2006.
Problems associated with the diagnosis of these infections can also compound issues associated with the surveillance of them:
“when a patient’s sample is sent for diagnosis, different laboratories use different methods for detecting HCAIs. This means that what might be reported as an HCAI by one laboratory might not be reported as such by another. Experts are calling for regulation to be introduced, recommending the use of certain tests over others.”
Does the clause allow the Minister, when the survey is completed in 2006, to say that a more robust national mandatory system of surveillance can be brought in, and that, under the code, it can be enforced by the Department? According to my reading of the clause, that will be possible because it addresses itself to all English NHS bodies—to any body that carries out surveillance for the Department. Proposed new section 47A(5) states that the code may
“operate by reference to provisions of other documents”.
Therefore, if the Minister has introduced a new scheme for surveillance, that could be referred to in the code, and thus be taken into account. Is my right hon. Friend the Minister satisfied that if that is what she intends to do in the future, the clause will allow her to do that?

Jane Kennedy: We have had a thoughtful clause stand part debate. In response to my hon. Friend the Member for Stafford (Mr. Kidney), I tell him that the clause does not need beefing up. It is beefy enough, and will do what the Government want to do about surveillance at this time. The way we are taking it forward will allow flexibility, so that if we decide to go down the route that he mentioned, we will be able to do so.
The clause is the cornerstone of the Bill’s health care-associated infections provisions. It adds three important new sections to part 2 of the Health and Social Care (Community Health and Standards) Act 2003, chapter 2 of which is concerned with, among other things, the quality and standards in NHS health care. The power to issue a code of practice on the prevention and control of health care-associated infections involving the NHS is extremely important.
While my hon. Friend the Member for Stafford, the hon. Member for Westbury and others have urged us to consider the surveillance of all infections, we must resist the temptation to do that just because we could. We must not overburden the health service with an overly bureaucratic structure that is not necessary for the purposes of patient safety.
On the point that the hon. Member for Westbury raised about a manual, as a result of some research we concluded that professionals did not want a manual as such. We have set up a web-based national resource for infection control. As with all things in the health  service, it has an acronym, which is NRIC. It is a simple way to access all the infection control advice and guidance that is available to the health service.

Andrew Murrison: I assume that the electronic version will be reliant on NHS IT. Will the Minister confirm that its roll-out will not be adversely affected by the chaos relating to Connecting for Health?

Jane Kennedy: I do not recognise the description “chaos” in relation to the Connecting For Health programme. I undertake to ensure that the website is a robust one, which will be the useful tool that we intend it to be for health service professionals.
We are beginning to break down the MRSA data that we are getting by clinical department. More detailed analysis can be done at hospital level, but for the purpose of improving patient care locally it would not be appropriate for us to require the health service to provide the information nationally, given our current IT systems.
The code will bring together the best practice that has been developed in tackling health care-associated infections. Through the statutory nature that we are giving it, we will ensure that best practice becomes embedded at all levels of the NHS. The clause places a duty on everybody to observe the provisions of the code as part of their duty of quality in health care under the Health and Social Care (Community Health and Standards) Act 2003.
In our debates last week and in this morning’s one, much consideration has been given to the central part of the health care-acquired infections measures in the Bill.

Andrew Lansley: The Minister seems to have contrasted the position of the current requirements on mandatory surveillance, as illustrated during the debate, with the proposition that every infection should be the subject of mandatory surveillance.
There are significant areas of infection. The Government have started the process of mandatory surveillance of orthopaedic surgical site infections. It would be possible, and probably not onerous for the NHS, but helpful for it, for surgical site infections to be the subject of mandatory surveillance. I believe that my hon. Friend the Member for Mid-Bedfordshire raised this point. Will the Minister undertake to consider whether to extend the mandatory surveillance at least that far?

Jane Kennedy: I am always willing to listen to sensible proposals. I am currently content that the mandatory requirements are all that is necessary. However, I am willing to examine the points that have been raised, including those made by the hon. Gentleman, and take them into consideration. Although the consultation period has ended, over the Christmas break I shall consider what has been said about the code today and last week, to see whether improvements can be made to it. I am grateful to all the members of the Committee for the contributions that they have made.

Andrew Lansley: We will expect an e-mail on Christmas day.

Jane Kennedy: E-mails on Christmas day may not be on my agenda. I hope that the Committee will give clause 13 a fair wind.

Question put and agreed to.

Clause 13 ordered to stand part of the Bill.

Clause 14 - Code of practice: effects on existing functions of Commission for Healthcare Audit and Inspection

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: Clause 14 is an innocuous clause, but it is nevertheless important. I should therefore be grateful if the Minister answered a few questions on it, before we signify that we are content.
The clause essentially deals with the role of the Commission for Healthcare Audit and Inspection in respect of the code of practice. In that context, we must refer back to the Health and Social Care (Community Health and Standards) Act 2003, with which many of us are very familiar. Some of us spent many hours considering it in the same way as we are considering this Bill.
Clause 14 sets out the effects of the code of practice on the existing functions of the CHAI; those effects are quite marked. What extra resources will be allocated to the Healthcare Commission in relation to those functions? That is an important matter, and will incur an opportunity cost. The Healthcare Commission is spread reasonably thinly as it is, and works very hard. If it is to be given more responsibilities, the resources necessary to discharge those responsibilities need to be found from somewhere. It would therefore be good to know what assessment the Minister has made of the costs and where the resources to meet those costs will be found.
The 2003 Act requires the Healthcare Commission to conduct an annual review of each NHS body. It must publish the criteria that it has devised, and those must be approved by the Secretary of State in accordance with the Act. The criteria must reflect standards set up by the Secretary of State in accordance with clause 46 of the Act.
On Thursday, I moved a raft of amendments to give teeth to the code of practice; those amendments were discussed during our debate on clause 13. In comparing the Bill before us with the 2003 Act, I am delighted to see that those amendments may yet see the light of day, because it is for the Minister to set standards from which the Healthcare Commission will devise the criteria against which it will judge NHS bodies when it inspects and reports on them. Those standards will presumably be things such as minimum cleanliness standards, infection control, nurse requirements, and minimum standards for the  cleaning of bed spaces, each of which were the subject of amendments that I and my hon. Friends tabled as part of the debate on clause 13.
The purpose of my contribution to the clause stand part debate is to ask the Minister whether my view of that matter is correct, and whether many of the concerns that I raised as part of our debate on clause 13 may be addressed via a circuitous route. I am, of course, disappointed that those matters will not form part of the code. However, I am pleased to hear that the Minister will spend her Christmas break deliberating on the code, and perhaps coming up with suggestions on how it might be improved, which she will send us electronically over the public holiday. That is very good, but I may be able to save her a little time and effort. It seems to me that she already has the power to set the standards that the Healthcare Commission will use to determine its criteria. The Bill hands the commission responsibility for judging NHS bodies on their cleanliness and their provision for addressing health care-associated infection, so all may be well. It would be good to hear the Minister’s views on that thesis; does she think that there is any truth in it?
Basically, what I am suggesting to the Minister is that if the 2003 Act and the Health Bill are taken together, the concerns that I outlined in debate on clause 13 may be addressed. The fact that the Minister is to set standards may sort out the issues that I raised in speaking to my amendments to that clause. I should be grateful if the Minister commented on that.

Jane Kennedy: We will come shortly to the new power to issue improvement notices that we will give the Healthcare Commission. The clause gives the commission the duty to take account of the code, precisely as the hon. Gentleman suggests, when conducting any review or investigation of health care under the powers of the Health and Social Care (Community Health and Standards) Act 2003.
Observance of the good practice set out in the code will clearly be critical to achieving a real improvement in infection prevention and control. If NHS bodies are trying and failing to achieve what the code requires of them, it is essential that that is known, and the body that will know it is the Healthcare Commission. When failings occur, it can inform the trust and—we will discuss this shortly—where necessary, the Secretary of State.
The clause requires the Healthcare Commission to take into account observance of the code when awarding performance ratings for NHS bodies. That puts infection prevention and control at the heart of this important measure. The power to advise the Secretary of State is a sensible and necessary measure. It ensures that the Healthcare Commission will review the observance of the code at the front line; it can use its knowledge of how the code of practice is being observed to advise on how the code itself can be improved. The power will provide an additional  mechanism to help bring about improvements in the code and, through that, improvement in the quality of infection prevention and control.
I am assured by the Healthcare Commission that it will be able to make reviewing the observance of the code part of the assessment process that it already conducts. That means that the additional burden on the commission about which the hon. Gentleman is concerned should be kept to a minimum. He will have seen that the regulatory impact assessment that accompanies the Bill included a broad estimate based on information supplied by the Healthcare Commission. As with all publicly funded bodies, the Healthcare Commission is under a duty to perform its functions as efficiently as possible. I am satisfied that it has the resources that it needs to undertake the extra work that we are asking it to do, although we expect that costs will initially be at the higher end of the range given in the regulatory impact assessment.
Obviously, it will take time for the best practice outlined in the code to become firmly embedded throughout the NHS. There will be early costs, but they will be minimal. I am confident that the Healthcare Commission has the resources that it needs. On that basis, I hope that the Committee will agree that clause 14 should stand part of the Bill.

Question put and agreed to.
Clause 14 ordered to stand part of the Bill.

Clause 15 - Code of practice: improvement notices

Steve Webb: I beg to move amendment No. 103, in clause 15, page 11, line 30, at end insert
‘and
(d)specify what sanctions will be applied if the healthcare body fails to comply with the improvement notice.’.
As the Minister hinted, clause 15 deals with the issuance of improvement notices where problems are identified. Amendment No. 103 is intended to probe what sanctions would be imposed if a health care institution failed effectively to tackle health care-acquired infections.
There have been various noises from the Government about the nature of the sanctions. At one stage, it was suggested that there might be criminal sanctions—legal action—against people at the top of hospital boards, but that seems to have gone. It would interesting to hear the Minister clarify the basis on which the Government rejected that suggestion. I am sceptical about whether it would have been a good idea.
I want to draw the Committee’s attention to remarks made by the chief medical officer, who said as recently as December 2003 that, despite all the guidance that had been issued to the NHS, there had been little improvement in tackling health care-acquired infections. The chief medical officer lists a number of aspects of the problem, one of which is that
“evidence-based countermeasures of known effectiveness are not being implemented consistently or rigorously in the majority of hospitals.”
People understand that such things are serious. We have heard the figure of 5,000 fatalities a year mentioned, although I gather that that is out-of-date and based on overseas information. Perhaps the Minister will confirm her latest estimates. Perhaps effective things can be done, but are being done only sporadically, not systematically; the point of a code of practice and an improvement notice is to try to tackle that problem. However, we all respond best to incentives. Our amendment says that the improvement notice ought to contain some indication of what will happen if the notice is not acted on.
On reading the Bill, and linking it to the Health and Social Care (Community Health and Standards) Act 2003, I found some indication of what might happen and what the ultimate sanctions would be, but I hope that the Minister can flesh that out in a number of respects. What time line does she anticipate between an infection problem arising in one department, for example, and the Healthcare Commission picking it up and giving the trust some time to do something about it before getting into the formalities of improvement notices?
When is the improvement notice issued, and how long does the Minister envisage the trust being given to sort things out? Will she just give us an indication? The worry is that I cannot see any indication of the time scales about which we are talking. Clearly, these things need to be tackled urgently, if people are dying because of failures of process. It is important that there is some indication, not merely of how long it will take, but what will happen if things are not done by a certain deadline.
The concept of a sanction is not ours; it came from the Secretary of State, who said in the debate in the House on 24 May 2005 that the Bill
“will establish a statutory code of practice, improved inspection arrangements and”—
this is the critical bit—
“as a last resort, appropriate sanctions in the both the NHS and the independent sector”. [Official Report, 24 May 2005; Vol. 434, c. 574.]
Unless our amendment is agreed, it is not clear whether those improvement notices will be explicit about the sanctions. They may say, “We expect certain things to be done”, but it is not clear whether they will say, “by a certain time” or, simply, “they must be done”.
We have talked about eventually sacking the board, or bringing somebody else in. There is talk in the guidance notes of possibly bringing in the infection control manager from another trust. We are interested in getting the infection sorted out, which has to be the priority. As the hon. Member for Westbury said, we are interested not in a blame culture, but in effective action. I am concerned that hospitals and trusts are under so much pressure from central Government, with a panoply of targets, benchmarks and league tables, and all the rest of it.
Those of us who are under pressure often react to the one who shouts the loudest. If the infection control improvement notice is not up front and explicit about sanctions, perhaps some of the other pressures will be more powerful. For example, if there is a conflict between targets on waiting times and infection, and an infection control manager says “Shut the ward; it’s the only way to deal with things”, will the trust weigh the relative penalty for failure on either front and work out which is the most serious? If the improvement notice has no indication of a clear sanction, and the trust is unafraid of the consequences of not dealing with it compared with the implications of going down in the legal table or facing a penalty for not meeting another Government target, they might not make infection control the priority, which we believe is vital.
I have one other observation: I get a sense that part of the sanction mechanism is almost naming and shaming; it is about reputation, perhaps gained or lost formally through the league tables. I presume that I will know if my local trust is served with an infection control improvement notice, and perhaps the Minister will confirm that it will be made public. There are arguments on both sides of that debate. Perhaps merely the fact that people’s professional colleagues, patients and, I suppose in the NHS these days, business units know what is going on will, in itself, be an incentive, but there needs to be more than that.
I hope that the Minister will confirm that the stick as well as the carrot will be used. She must tell us the time scale for the implementation of the enforcement and improvement notices and ensure that because of how they are implemented trusts will take them very seriously.

Andrew Murrison: The issue of sanctions is fascinating, because they can mean so many things. In the professional sense, success or otherwise in achieving an outcome is sanction enough, as we all want the approval of our peers. In Parliament, for example, if do not have a good reputation we feel unhappy about it, and the same applies to health care professionals. We like to think that our peers appreciate what we do and recognise that we achieve good results. That, generally speaking, is the driver in the NHS. The problem with sanctions is that that driver is not sufficiently recognised.
Hospital-acquired infections have traditionally been seen as the responsibility of someone else, as supplementary to the main thrust of what a hospital does, which is carrying out successful hip replacements, for example, and ensuring that people admitted to a coronary care ward are well when they leave hospital. We need to ensure that that aspect of health care is at the heart of what the NHS and other health care providers do.
To give credit where it is due, the professions have begun to address the issue. I therefore hope that sanctions per se will not be such a big issue in future; the true sanction is that driven by the professions themselves, and it is related to the esteem or otherwise in which individuals within those professions hold one another.
I hope the Minister will comment on the difference in how the private and not-for-profit sectors in health care are dealt with in relation to the NHS. In a previous sitting, the hon. Member for Northavon, contrasting the sanctions that may apply to the two sectors, seemed to misunderstand the level of sanction and the penalties that may apply to the private sector—those bits of our health care system which lie outwith the NHS. If I got that wrong the hon. Gentleman will correct me. In truth, the sanctions that apply to the private sector are potentially very severe indeed because they are quasi-commercial, or commercial, in the sense that the HealthCare Commission could deliver an unfavourable report which could lead to contracts being removed. There are jobs involved, staff have mortgages to pay and so on, and their minds are heavily focused on the issue.
It does not happen in quite the same way in the NHS. In accordance with the 2003 Act, when a management problem is identified in the NHS, the individuals concerned are usually moved on, or moved sideways. We can all think of examples from our own constituencies where that appears to have happened. The level of sanction is not quite the same.
Nevertheless, what will be of concern to those at the front line, be they managers or health care professionals, is how they will appear to their peers. That, together with the altruism that goes with being a member of a health care profession and the desire to do good or, in the context of medicine and allied professions, at least to do no harm, is what will drive this matter. We need a recognition that that, rather than heavy-handed sanctions per se, is what tends to drive standards, particularly in the NHS.
I hope that the Minister will assure us that she would not be tempted to apply financial sanctions. We would have difficulty with that because we take the view that if there is a problem, removing resource is the worst thing that can be done. Part of the problem might be the need to use resource to improve things. The Liberal Democrats have tabled a later amendment that touches on this matter and I believe that the crux of it has to do with financial penalties that may apply, in the hope that any improvement might be funded centrally. To that extent, we would have similar sorts of concerns.
The notion that, having identified a problem, we need to fine the institution seems to be wholly inappropriate and a bit of a paradox. We want to rely on the powers that the Secretary of State already has under the 2003 Act to effect managerial change where that is necessary. We hope that there might be a bit more bite to that in the Minister’s handling of this serious aspect of health care in this country.

Jane Kennedy: For the avoidance of any doubt in the minds of members of the Committee, I declined the invitation to communicate electronically with them, either on Christmas day or on any day during the Christmas break. I undertake to read the Hansard  record of our conversations, so long as my private office can get the box to me before the ferry departs on my last working day.
The Healthcare Commission has a key role in assessing the NHS and encouraging it to improve its performance. We have agreed that. In light of that supportive role, proposed new section 53A(4) would provide a power for the commission to recommend means to remedy the situation when an NHS body is failing. It is for the Secretary of State—and Monitor, in the case of foundation trusts—to consider what sanctions should be imposed, if necessary, where an NHS body has failed to comply with an improvement notice.
The improvement notice is a new and important power for the Healthcare Commission, one which will provide it with an interesting way of interacting with the organisations that it is inspecting. Special measures might include anything that the Secretary of State, or Monitor, thinks necessary to put things right as quickly as possible. That will be the focus of the effort. As we have discussed, such measures may include practical assistance or organisation support. For example, as the explanatory notes mention, the Secretary of State could enlist the help of the director of infection prevention and control from an NHS trust that has successfully implemented the code. That individual could advise a trust that is failing about how their trust put the code into practice and how the code could work.

Andrew Lansley: I am getting a bit confused. Perhaps the Minister will help me to clarify matters. My understanding is that improvement notices may be served in circumstances where there is not a significant failing under the terms of the 2003 Act, which would give rise to a report to the Secretary of State or to the monitor as appropriate. The Minister seems to be describing special measures taken under an improvement notice, but that clearly does not apply. Improvement notices specify remedies; significant failings lead to special measures of an interventional kind by the Secretary of State or the monitor.

Jane Kennedy: That is right. I am sorry if I confused the hon. Gentleman. By describing the special measures, I was seeking only to go through some of the suggestions made by members of the Committee. It was asked why there are no criminal sanctions, for example. We discussed that briefly last Thursday, if I remember rightly. The Government have considered criminal measures or criminal sanctions, and I have thought about that carefully, but after listening to people on one or two visits that I made and after considering the response to consultation, we concluded that such measures would be inappropriate for two principal reasons.
First, our current powers of intervention are more effective as a tool than the threat of prosecution in the courts would be. I described last week how difficult it would be, in the case of total system failure, to narrow things down to a single individual or group of individuals, but we will—the Healthcare Commission  will be part of this—look to see how seriously the organisation is taking the whole issue, and there will be an individual at board level who is responsible for overseeing the code’s implementation.
The second reason has already been touched on: there is a real risk that the use of criminal sanctions would discourage open reporting of errors and incidents. I want there to be a culture in the health service that encourages openness and reporting, not only of incidents of hospital-acquired infection but of all adverse incidents in hospitals, so that we can learn lessons from them without fear of unjust persecution of individuals.
On the question of what happens in respect of private sector care homes, the hon. Member for Westbury is right. Onerous sanctions already apply to those operating as a private organisation. They have to register in the first instance if they are providing care through a nursing home or a care home, and with registration comes the implied threat to the business. We will introduce a code that exactly mirrors the code of practice for the health service and that will apply to the private and independent sector.
Although I have not spoken for long, I hope that I have addressed the issues and concerns that have been raised.
Mr. Lansleyrose—

Jane Kennedy: I was about to make one last point on financial sanctions.

Andrew Lansley: I do not think that this point is necessarily about financial sanctions. I understand, I think, how the measure works, but there is something that I do not understand. Circumstances are envisaged in proposed new section 53B(8) of the 2003 Act, in line 28 on page 13 of the Bill, in which the Healthcare Commission believes that the improvement notice has not been complied with, but it is not required to make a report to the Secretary of State or the monitor because the failings are not significant. What sanctions could apply in circumstances in which the Healthcare Commission has reached that view and it cannot use the sanctions under the 2003 Act?

Jane Kennedy: If the Healthcare Commission has come to the view that there is a failure but not of the serious kind, it can reflect that in its annual report on the body that it is inspecting. I expect that, once the measure beds in, there will be a regular dialogue almost between the inspectors and those being inspected and an increasing awareness of the areas of risk in the organisation, so that steps are being taken and there is awareness of the steps that need to be taken. The Healthcare Commission will be able to see fairly quickly and clearly whether those steps are being taken in order to improve, year on year, the performance of the institution.

Andrew Lansley: I understand that, but what is contemplated in paragraph (d) in line 31? It appears to suggest that an improvement notice may not be complied with and that it may be concluded by the Healthcare Commission that the failing is not a  significant failing which gives rise to sanctions using the powers of the 2003 Act set out in section 53(2) of the Act, but
“(whether or not paragraph (c) applies)”—
 whether or not it has made a report to the Secretary of State—it should set out
any action which it proposes to take”.
What does action mean in that context?

Jane Kennedy: I am trying not to be too prescriptive because I expect that it will very much depend on the circumstances at the time. The Healthcare Commission will be able to point the organisation that is failing, although not critically, to best practice that might not be being applied. The hon. Gentleman asks what will happen if the organisation fails or refuses to take that action. That will depend on the circumstances. The Healthcare Commission has wide discretion as to what it can recommend, but if it does not take action it will always be open to the Secretary of State to take action if he or she feels that there are sufficient grounds to do so.

Andrew Lansley: I am grateful to the Minister. The explanatory notes make it clear that action in this context could mean the further supply of information, such as more monitoring by the Healthcare Commission. I want to be explicit about this, as it may be okay. Do we have to rely on the fact that if any failure to comply with improvement notices becomes serious and is therefore the subject of a report to the Secretary of State or is to be monitored, if it is a significant failure under section 53(2) of the 2003 Act, the sanctions can apply and there can be direct intervention? Is it contemplated that any sanctions should be applied on the basis of a failure to comply with the improvement notice, save for information-gathering, scrutiny and further recommendations?

Jane Kennedy: I am sorry if we are making heavy weather of this. The hon. Gentleman is absolutely right, but I shall not be so prescriptive as to say, at this point, what the commission can or cannot do. If it comes across some failings in an investigation or annual inspection, it has a duty to draw those failures to the attention of the organisation and to ensure that the organisation complies. Let us not get too bogged down in this. The hon. Gentleman is right. I do not expect specific sanctions to be taken in the event of a less serious failing, but I expect that the whole process will bring about an improvement, year by year, in the way in which hospitals and NHS health care bodies conduct their business in relation to the prevention of serious infections.
On financial sanctions, the hon. Member for Westbury can rest assured that we do not think it appropriate to introduce new financial sanctions, precisely for the reason that he gave: it would remove resources from patient care, which would defeat the object.
With that, I hope that I have answered the concerns raised by the hon. Member for Northavon when he moved the amendment. The amendment would not  help the Bill, and I hope that the hon. Gentleman will not press it; if he does I will ask my colleagues to resist it.

Steve Webb: I am sure that I have just heard an explanation as to why I should press the amendment, to be honest. I asked the Minister several questions and did not get many answers. I got an answer on criminal sanctions, for which I am grateful. I did not, however, get any answers to my questions on the time scale and process. I reassure the hon. Member for Westbury that we did not have financial sanctions in mind when we drafted the amendment; it does not say “financial”, it simply says “sanctions”.

Jane Kennedy: I apologise to the hon. Gentleman; he did ask about time scales. Again, there is no prescription on that issue. I do not expect that health service bodies will not take seriously representations that the Healthcare Commission might make following specific or annual inspections. It will be very much up to the commission to determine the time frame of an improvement notice.

Steve Webb: I am grateful for that. I simply wonder about the teeth of the provision, given that the commission existed then and the chief medical officer said as recently as two years ago that the evidence-based measures, which we know work, were not being implemented consistently or rigorously.
I admit that the debate on sanctions has been very helpful, but I am more confused than I was at the beginning about the code of practice and improvement notices. My understanding of the system is that the Healthcare Commission carries out an annual assessment, tells the Secretary of State if it spots something going wrong with the code of practice, and says that something must be done and that special measures must be taken urgently.
I hope that the Minister will correct me if I am wrong. Will she confirm that we are talking here about an improvement notice as a sort of second order? It is almost like saying that something is a bit wrong but not so seriously wrong that we need to do anything very urgently. It is fairly wrong so it is fairly urgent, and we should probably do something about it. I find that strange. It is saying, in effect, that there are breaches of the parts of the code that relate to infection control, but that they do not matter very much. We will give trusts until, say, the next inspection to sort out those breaches. I understand that there can be both big breaches and small breaches, but it worries me that we are communicating the message that minor breaches are okay so long as the trusts get around to sorting them out eventually. All parts of a statutory code should be taken very seriously. The attitude should not be, “Oh well, we had an infection.”
I used to be a shadow spokesman on work and pensions—the Minister’s old Department. Year after year, its accounts were not signed off. That became normal. The attitude was, “Oh well, they think our numbers don’t add up. They are a load of tosh, but what the heck, because there is no penalty, no  problem, and no sanction.” My worry is that if we regard second order problems with the code as routine, do not tell the Secretary of State but simply ask the trusts to do something about them, and do the same the next year if we report that there may be another problem, the improvement notices will fall into disrepute after a while because they have no teeth. The only time they will have teeth is when the commission goes to the Secretary of State. I am more worried at this stage of the debate than I was at the start of it.
I have not heard a compelling argument against accepting the amendment, but in the interests of getting through the rest of the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Steve Webb: I beg to move amendment No. 102, in page 11, line 43, at end insert—
‘(6A)When the Secretary of State is notified with a failing in connection with the code under section 47A he shall be responsible for the provision of resources necessary for the failing body to comply with the terms of the improvement notice.’.
As Conservative Members said, what happens if a problem is identified and the answer involves significant expenditure of resources, but the trust, or other body, is not in a position to deal with it? An obvious point to make at the outset is that we do not believe that effective infection control is primarily a financial issue or that not a lot of money is needed to ensure, for example, that people wash their hands properly. One can envisage circumstances, however, in which the answer to the infection problem is more substantial and may require the building of isolation facilities or other structural reform in a hospital. In those circumstances, it would be very unfair simply to issue an improvement notice, or even to have special measures to provide that the Secretary of State is informed but not to provide the trust with the wherewithal to deal with the problem.
Given the statutory duty on trusts to reach break even and the substantial minority of trusts that are in significant financial difficulty, how will such trusts be able to deal with a serious infection control problem that requires capital investment? If part of the problem is old, crumbling buildings and the only way in which to tackle the root of the problem is to bring in the bulldozers or build an isolation unit, and the trust says, “We have a £2 million deficit to clear by March, we simply cannot begin to do this,” how can the trust be expected to do it?
When there is a failing in the code under section 47A, our amendment would put a duty on the Secretary of State to ensure that the necessary resources are available to the failing body. The hon. Member for Westbury was right: the wording of the amendment seems to imply that the resources would come from Whitehall and would be centralist. To be honest, we do not mind who provides the resources; we want to place a duty on the Secretary of State to ensure that the resources are available. Whether they come from health authorities, primary care trusts or whoever, we do not mind.
Our preference is for a decentralised approach. However, if the Secretary of State brings in a code of practice and a notice about the big financial implications of breaching that code of practice, she cannot wash her hands of the consequences. It is not enough to say, “You must do better, you must sort this problem out,” while leaving the trust in no financial position to do so.

Andrew Murrison: Would the amendment apply only to NHS bodies, or would it also include those parts of our health care system that lie outwith the NHS? If not, does not the hon. Gentleman accept that there might be a problem with what may be described as a level playing field?

Steve Webb: I shall give the hon. Gentleman an instinctive response. As the amendment is drafted, it would appear to imply that, as he suggests, a failing body could mean one outside the NHS—a non-NHS provider. That was not my intention. If the private sector decides to supply services to the NHS, it should include in its financial planning the finances necessary to provide effective infection control procedures. My point is that the NHS and its finances are the responsibility of the Secretary of State, and it would be wrong of her to say that action with potentially substantial revenue and/or capital implications must be taken to tackle an infection without ensuring that the trust that had failed had the money it needed to do the job.
I shall not deviate on to the financial state of the NHS. Deficits are an increasing problem and they tend to be heavily focused, so where they happen, they are quite big. A significant minority of trusts have most of the deficit. If the bodies in substantial deficit were also the failing bodies referred to in the clause, it would be unreasonable to expect them to sort out the problem without the Secretary of State ensuring that they had the resources to do so. That is the purpose of our amendment.

Andrew Murrison: Amendment No. 102 is interesting. I am pleased that in response to amendment No. 103, the Minister was able to assure me that financial penalties would not be imposed on trusts. However, amendment No. 102 would take the next step, providing money to trusts shown to be failing in respect of the matters under discussion. The amendment is fraught with difficulty, and I raised one difficulty with the hon. Gentleman on intervention. For that reason alone, we could not possibly support the amendment. It is flawed, and he was good enough to admit that.
The amendment would incentivise failure. In the same way in which we should be reluctant to support the levying of financial penalties on trusts that have been shown to have a problem, for the reasons that the Minister so eloquently discussed in her reassurance, we should not be minded to support this incentivising of failure either. At the last general election we listed ways in which trusts might improve their cleanliness, their hospital hygiene record and their record with  health care-associated infections. That, rather than the hon. Gentleman’s suggested measures, seems the appropriate way to proceed.
I think that what he is talking about involves, often, large capital investment in trusts. That might, of course, introduce all sorts of perverse incentives. If the approach were to be fair, I suppose one could say, it would have to involve institutions outwith the NHS, and there would definitely be a commercial incentive, in certain circumstances, not to do things, in the expectation that the Secretary of State would be likely to come up with the readies to invest in real estate or whatever, to bring things up to spec. That would cause far more problems than it would solve. For those reasons, the amendment does not have our support.

Steve Webb: The phrase “incentivising failure” is interesting, because in all sorts of areas of public life we spend money where there are problems. I suppose that that could be called incentivising failure, but that is what happens. We tackle problems, in some cases, by spending money on them. If the hon. Gentleman does not think that that is the answer, how would he tackle it? If a trust in his constituency was millions of pounds in deficit, and had an improvement notice served on it for tackling infection control, and its representative said to him in his surgery, “We haven’t the money to deal with the problem,” what would his answer be?

Andrew Murrison: I am not sure that things are quite as black and white as that; I really do not think that they are. I should be interested to know precisely what elements of capital funding the hon. Gentleman is thinking of. It seems to me that reasonably small-scale stuff would be involved. I make no apologies for the term “incentivising failure”. The whole drift of our thinking about health services—and, to be fair, that of the Government, I believe—is a degree of independence and taking charge. The hon. Gentleman seems to be saying that his party would not be inclined to do that, and that it wants central control. That is precisely what the proposal would mean.
If the organisations in question would be looking to central Government for a bung of money to sort out their problem, that would be central control. That is part of the problem with hospital-acquired infections. The culture of targets has driven a great deal of that. The one cannot be divorced from the other. We either go for the kind of approach that the hon. Gentleman suggests—an entirely centrist approach to health care—or we adopt a devolved approach. Our view is that a devolved approach, with independence given locally, is far more likely to drive up standards across the board than the centrist approach that the Liberal Democrats favour.
I was on the point of sitting down when I took the hon. Gentleman’s intervention; now I am definitely going to sit down.

Jane Kennedy: Before I respond to the amendment, those who are listening very closely to what is said—particularly by the Minister—have asked me to clarify something. I got carried away with my rhetoric and said that the code that will apply to the independent  sector will be identical to the code that applies to NHS bodies. It will, in fact, be similar but not identical. I am pleased to take the first opportunity to make that clear.

Andrew Murrison: I am not clear on that. It sounded to me like an important point. The Minister, for clarity, has said that the code will be different for the NHS and for the parts of health care that lie outwith the NHS. Is that correct, or have I got it completely wrong?

Jane Kennedy: The codes will be very close, but not identical, simply because of the different structures within which the different sectors operate. However, in all essential elements—the standards with which people will be expected to comply—they will be the same. I hope that that helps.

Andrew Murrison: This is important. I take the Minister’s reassurances about the level playing field, but she talks about structures, and I wonder if she could be more expansive about what problems, in respect of the differences between the two sectors, will require such a subtle change in the code.

Jane Kennedy: In order to clarify the matter, I undertake to write to the hon. Gentleman and to circulate copies to the Committee.
I disagree with the hon. Member for Northavon, and find myself in a lot of agreement with the hon. Member for Westbury. It is important to be clear about the intention of the new code of practice. It will bring together existing guidance and good practice—things that NHS bodies should already be doing. Therefore, there is no question of its imposing significant new requirements or financial burdens ond¤trusts—certainly when it is first published. Furthermore, so far as future changes are concerned, there must be an expectation that NHS bodies, to which the code will apply, will want to keep up with good practice and to use the resources that are available to them. There cannot be an expectation that NHS bodies have to be individually funded every time there is a development in best practice. NHS bodies have a duty to improve the quality of the health care that they provide, whether that occurs as the result of a change in this code or due to wider changes in the field of health care dictated by improvements in good practice. We cannot say that that duty will be contingent on specific funding for every last improvement.

Steve Webb: And that, obviously, is not what we are considering. We are talking about something specific to a failing body which might, for example, be peculiar to the history of the site and require specific intervention. It might be disproportionate to the body’s budget, it might be urgent or, in the context of a deficit, there might be no other money available to deal with it. Of course, general improvements that apply across the NHS do not need specific funding. That is not what we are talking about here.

Jane Kennedy: But if a price tag came with failure, the effect of the amendment would be to provide trusts with a perverse incentive to fail to comply with the code of practice. That would mean that the new legislation, as amended, would actively encourage trusts to take inadequate action to protect patients against health care-associated infections. It would actively increase the very risks to patient safety that the measures are designed to reduce. It is hard to imagine that that is the desired outcome of the amendment, but that is the effect that we believe it would have. For that reason, I hope that the Committee will resist the amendment should it be pressed to a vote.

Steve Webb: I must admit that I am shocked by the complacent response that we have just heard. Neither the Minister nor the hon. Member for Westbury has answered the question. We know that there are trusts that are in deficit—that is not in dispute—and we know that tackling infection control in a specific case could be expensive, could involve capital works and could need to be done urgently. However, we have not had an answer from the Government or the Conservatives as to how they would tackle such a situation. We have just been told that it is a devolved matter. The wishful thinking in both camps appears to be that those involved should just sort it out. I find that profoundly disappointing.
Under the terms of our amendment, the Secretary of State would have a duty not to write a cheque every time that trusts came asking but to ensure that they had the money that they needed. If the Government believed that the normal funding was adequate to cover routine infection control, the clause would not be necessary. It is clearly meant to apply to exceptional circumstances, and we have had no answer as to what would happen in such circumstances.
I find the argument about incentivising failure bizarre. The hon. Member for Westbury is, rightly, fond of telling us about the commitment of his professional colleagues, but here he seems to be implying that they would deliberately rig the system; they would respond to the financial incentives in the clause by deliberately failing. One can only assume that that is what he meant by his intervention. I have a higher opinion of his colleagues than he does.

Andrew Murrison: The hon. Gentleman talks about my colleagues. I am, of course, referring to NHS bodies. There is a difference between the two, and I tried to tease that out in my earlier comments. However, by way of example, let us take an operating suite that is a little tired, and an organisation that feels that, in the event of an annual inspection by the Healthcare Commission, it might receive adverse comment resulting in a bung of money from central Government. Alternatively, it might decide to spend money on it from its own resources. Say the hon. Gentleman is a member of a trust board, faced with a string of priorities—he talks of NHS trusts in deficit, and they have long lists of things that they have to do. Where in that list of priorities will that matter be pegged? I suspect that it will be pegged relatively low down, in the expectation that the commission will  come in and deliver an adverse report, which might have been expected in any case, and that what would result would be a bung of money. That is, of course, an extreme example, but it illustrates the point that I am trying to make, and that the hon. Gentleman is trying to misconstrue.

Steve Webb: What we are saying in our amendment is that the Secretary of State should have a duty to ensure that the trust or failing body has sufficient resources. In the example that the hon. Gentleman gave, it is clear that the trust had sufficient resources, but spent them in some other way. That would not be acceptable; it would not be an eligibility criterion for the sort of assistance that we are discussing.
The hon. Gentleman failed to deal with the point that, throughout the public services, we spend money to put things right when they are going wrong. The idea that that is a perverse incentive to failure is absurd, because the alternative to spending money to put things right is not to spend money to put them right, which would be a far worse position. With some regret, I will withdraw the amendment, in the interests of having time to scrutinise more of the Bill. I feel that the Government have not given us straight answers on how a trust in deficit, facing those sorts of problems, which need substantial investment, is expected to deal with such a situation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Andrew Murrison: We have had a fascinating debate on the clause. I must confess that when I was looking through the remainder of the Bill after the provisions concerning smoking and the earlier clauses in part 2, I thought that we would rattle through it without too much controversy. However, this clause has sparked a certain level of controversy and an interesting debate.
I think that, between us, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), the Minister and I managed to thrash out what would happen in the event of the Healthcare Commission identifying a problem in respect of health care-associated infections, the difference between an improvement notice and a report, and their significance. I understand that in such a case an improvement notice would be served, and the sanction for not complying with that would be a report, which, in turn, if there was something called “significant failings”, would result in something that is defined in the 2003 Act as “special measures”.
I am still not clear what significant failings or special measures are, but I understand that they may have to do with some sort of sanction. I am not clear what the Minister’s understanding of that process is. I know that we are cantering along at this point in our consideration of the Bill, in the hope of reaching important bits later on, but it would be helpful if the Minister could give us her reflections on what she  understands by “significant failings” and “special measures” and on what might be appropriate sanctions in the event that a report has to be made by the Healthcare Commission to the Secretary of State or to the regulator.
Section 52 of the 2003 Act allows for the commission to conduct overarching reviews of particular aspects of health care, such as hospital-acquired infections. If it did so in respect of that area, what would it do if it found a problem? It would seem inappropriate for it to deliver an improvement notice under those circumstances. I assume that some sort of report would be issued to the Secretary of State. It would be useful to know what action the Minister would take under those circumstances. We have had the Act for two years and I imagine that those sorts of situations, or something approaching them, may have arisen, and the Minister may therefore have some precedent on which to base her plan of action.
I focus specifically on hospital-acquired infection, because I cannot think of any area more worthy of the commission’s attention, if only because of the popular concern that has been expressed on that particular area of health care and, in some sections, the doubt that it has cast on the excellence of our system among the more hysterical elements of the press and therefore in sectors of the population. We have to reflect that. I cannot think of a better topic for the commission to seize for an overarching review than health care-associated infections. In the event that it were to carry out such a review, which it might be advised to do, if it found a problem it would presumably deliver a report to the Secretary of State. What action the Minister would take on receipt of such a report is uncertain.
Subsection (3)(c) leaves open the time allowed for the discharge of improvement notices. Clearly the Minister feels that that is reasonable, or it would not be in the Bill, but I find it a challenging concept. Most improvement notices that I am aware of have some sort of time limit; they are not left open. It would be useful if the Minister could discuss the time frame that she is considering. Will it be 12 months? That would, of course, be the normal periodicity of a commission inspection. Would the deadline be tighter than that? I hope, in the context of health care-associated infections, we would consider challenging time frames in which to deliver the improvements that are the subject of such a notice.

Jane Kennedy: The clause gives the Healthcare Commission the new tool of the improvement notice. A notice may be issued when, following a review or investigation, the commission is of the view that the body is failing to observe the code in any material respect and an improvement notice is the most appropriate way to remedy that.
I thought that it was clear from the explanatory notes that the improvement notice will set out particulars of the failure and give the body a period of time in which to address the situation. I will not prescribe what that period will be. The commission may also include practical advice on how the body can  remedy the failure. The improvement notice gives the body an opportunity to solve the problem itself, perhaps with the help of advice from the commission.
At the end of the period specified in the improvement notice the commission will conduct a review and send a report to the Secretary of State or monitor, as well as to the relevant strategic health authority if the body reviewed is a primary care trust or an NHS trust. That will ensure that any performance management role can be fulfilled in an appropriate manner.
If the commission is of the view that the NHS body has complied with the improvement notice and is fully observing the relevant provisions, that will be reported and the process will end there. If the commission is of the view that there are major outstanding issues that constitute a significant failing, that also will be reported to the Secretary of State or to the monitor, who could take the special measures that we have discussed. I have already described what the special measures could be and I will not offer any further prescription.
We will not define “significant failing” it in the Bill, but it will be one that seems significant enough to be drawn to the attention of the Secretary of State or monitor. It could include a failure to observe the code, but, taking all the relevant factors into account, it should be a failing that might, if it were not remedied, cause a risk to patient safety. In informing its opinion on whether the failings are significant the commission will have to take the overall situation into account, including the body’s failure to comply with the improvement notice and the reasons behind that.
If, following the review, there are outstanding issues that the commission does not consider to be significant failings, it will report that, together with its reasons. It will also report in all cases on any work it intends to do with the NHS body to rectify the remaining failings. As I have said before, and repeat now to try to be helpful, special measures in the event of a significant failing may include anything that the Secretary of State or monitor thinks necessary to put things right.
This discussion has been useful, and I hope that the Committee will give clause 15 a fair wind. It introduces a significant new measure that the Healthcare Commission can use. Perhaps it will interest the Committee to note that improvement notices are not new. Under section 81 of the 2003 Act, the Commission for Social Care Inspection already has powers to issue improvement notices for local authority failings, although those powers are different. The Healthcare Commission strongly welcomes the new power. I shall be interested to see how it is used, how the policy develops and whether we should consider using it as well.

Question put and agreed to.
Clause 15 ordered to stand part of the Bill.

Clause 16 - Accountable officers and their responsibilities as to controlled drugs

Andrew Murrison: I beg to move amendment No. 11, in clause 16, page 14, line 6, after ‘regulations’, insert
‘having consulted with representative bodies’.
We are really rattling through the Bill now. We are at part 3 already—who would have thought it? Let us make sure that we keep up the momentum. I hope that the Minister will give lots of satisfactory responses to our amendment; that would expedite the process.
Amendment No. 11 is simple; it has to do with consulting representative bodies before provision is made to require designated bodies to nominate or appoint persons who have prescribed responsibilities on controlled drugs. I hope, Mr. Illsley, that we will have a stand part debate on clause 16—not this morning, I suspect, but at some point. I shall therefore be brisk and to the point now, although there is a great deal to cover.
Controlled drugs are important. The issue stems from Dame Janet Smith’s report on the Shipman tragedies, and it is important and appropriate that we should reflect on it and give it due place in our deliberations. If we are fortunate enough to have a clause stand part debate, Mr. Illsley, I will make no apology for being a little expansive, although I shall not be so this morning.
The amendment has to do with the representations that we have had from what one might call representative bodies, in particular the Royal Pharmaceutical Society of Great Britain, whose nose has been put somewhat out of joint by those who drafted the Bill. The society does not appear to have featured at all well, despite its having been given to understand that it would continue to have a fairly prominent role in the inspection of the regime for controlled drugs.
We can accept that that regime is unsatisfactory as it stands. It is a sort of polyglot arrangement of inspections that is clearly not fit for purpose. Broadly speaking, we welcome the element of the Bill under discussion, stemming, as it does, from Dame Janet’s inquiry. Of course, the Bill does not include that inquiry’s precise recommendations, but it is reflective of them and we are broadly happy with that.
However, it is a pity that we appear to have missed an opportunity to include in the Bill reference to those representative bodies, and not just because they are representative of particular interest groups. The Royal Pharmaceutical Society, specifically, is already involved in regulating the system that we have. The society is expert and contains people who have been doing such things for many years. It is a pity that its expertise has not been recognised and that it is not included in the Bill. I am sure that other bodies have also not been included. Any regulations that may be made under this clause would be improved through consultation with the bodies that I have described. That is the purpose of amendment No. 11.

Jane Kennedy: I hope that I can quickly reassure the hon. Gentleman that we have not in any way excluded those who might be regarded as key stakeholders from being involved and consulted. We accept their involvement.
It is of the utmost importance that we ensure that representative bodies’ views are heard, and that we listen to them. For that reason, policy development of the Government’s action programme on controlled drugs, “Safer management of controlled drugs: The Government’s response to the Fourth Report of the Shipman Inquiry”, was overseen by an advisory group of key stakeholders, which included the Healthcare Commission, the Commission for Social Care Inspection, the Royal Pharmaceutical Society of Great Britain, the police, the Home Office, strategic health authorities, primary care trusts, patient groups and professional representative bodies.
Therefore a broad group has been assisting the Department of Health. That group helped to produce draft guidance for public consultation on strengthened governance arrangements for controlled drugs. That  draft guidance sets out most of the detail that will be included in regulations. That consultation has now closed, and a final version of the guidance is being produced. The results of the consultation will inform the writing of the regulations. We shall also consult informally with key stakeholders on the detail of the regulations.
The amendment would require consultation with key stakeholders to be included in the Bill. A consultation with the representative bodies on the regulations would also be required, and that would delay implementation of the provisions and duplicate the consultation on the draft guidance on the new arrangements. For that reason, I hope that the hon. Gentleman will not press the amendment to a vote.

Andrew Murrison: The Minister has given me some reassurance that the input of those bodies has at least been requested. Therefore I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Further consideration adjourned.—[Gillian Merron.]

Adjourned accordingly at three minutes past Eleven o’clock till this day at Two o’clock.